ML20236R789
| ML20236R789 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/20/1987 |
| From: | Hagins E NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | MASSACHUSETTS, COMMONWEALTH OF, SEACOAST ANTI-POLLUTION LEAGUE |
| References | |
| CON-#487-4881 ALAB-875, ALAB-879, OL-1, NUDOCS 8711240030 | |
| Download: ML20236R789 (27) | |
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frel 00LMETED j UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD
- B7 Nov 20 2136 'i j
Administrative Judges: %Ip"}
Fl !
Alan S. Rosenthal, Chairman November 20, 1W Howard A. Wilber (ALAB-879)
) ' SERVED NOV 2 01987 In the Matter of )
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PUBLIC SERVICE COMPANY OF- ) Docket Nos. 50-443-OL-1 ;
NEW HAMPSHIRE, et -al. )- 50-444-OL-1 :i
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(Seabrook Station, Units 1 ) (Onsite Emergency Planning _ j and 2) ) and Safety Issues) l
) I Allan R. Fierce, Boston, Massachusetts, for the intervenor James M. Shannon, Attorney General of {
Massachusetts. l 1
Robert A. Backus, Manchester, New Hampshire, for the intervenor Seacoast Anti-Pollution League.
a Thomas G. Dignan, Jr., George H. Lewald, Kathryn A.
Selleck and Deborah S. Steenland, Boston, Massachusetts, for the applicants Public Service Company of New Hampshire, et al.
Edwin J. Reis and Gregory Alan Berry for the Nuclear Regulatory Commission staff.
l DECISION i
The Commission's regulations require radiological emergency response planning to include, inter alia, means "to provide early notification and clear instruction to the populace within the plume exposure pathway emergency planning zone [EPZ)." In the case of the Seabrook nuclear !
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8711240030 871120 PDR ADOCK 05000443 Q PDR . ()Y 4
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power facility, this requirement is being met in large measure by the installation of sirens in both the New Hampshire and the Massachusetts portions of the EPZ.
In ALAB-875,2 we determined all but two of the questions that were raised on the. interveners' appeals from the Licensing Board's March 25, 1987 partial initial decision in the onsite emergency planning and safety-issues phase of the proceeding on the Seabrook operating license application.3 The questions retained for later disposition concerned the correctness of the Board's rejection in I separate interlocutory orders of two contentions, filed
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after that phase of the evidentiary record had closed, that focused upon the adequacy of the sound levels of the sirens installed in East Kingston, New Hampshire, and Merrimac, Massachusetts.4 In each instance, one assigned basis for 26 NRC (October 1, 1987).
4 See Licensing Board Memoranda and Orders (March 23 and 25, 1987) (unpublished). The East Kingston. contention was sponsored by the intervenor Seacoast Anti-Pollution League and the Merrimac contention by the intervenor Attorney General of Massachusetts.
There is no dispute among the parties that those contentions had to be advanced in the onsite emergency planning phase of the proceeding. Even though the sirens are designed to provide offsite public notification of a radiological emergency, the Commission deems the arrangements for such notification to be within the ambit of (Footnote Continued)
3 the rejection was the Board's belief that the proponent of the contention had failed.to.show in the accompanying motion to reopen the record, as required by the Commission's Rules of Practice, that a significant safety issue was involved.5 For reasons alluded to in ALAB-875, we thought it might prove possible to resolve the crucial differences among the parties on the siren matters without the necessity
- of deciding whether, as a matter of law, the contentions in question were improperly rejected at the threshold.7 Because the exploration of that possibility was still in progress at the time our review of all of the other (Footnote Continued) onsite emergency planning. See Statement of Consideration accompanying 10 CFR 50,47 (d) , 47 Fed. Reg. 30,232, 30,234 (1982).
5 Such a showing (among others) is an' absolute condition precedent to the reopening of a closed record.
See 10 CFR 2.734 (a) (2) .
6 See 26 NRC at (slip opinion at 44-47).
In this connection, a contention that raises an entirely new issue and is filed after the record has been closed can be accepted for litigation only if it both (1).
meets the reopening criteria set forth in 10 CFR 2.734 (a) and (2) survives a balancing of the five factors that, by virtue of 10 CFR 2.714 (a) (1) , control the admission of any late-filed contention. With regard to the East Kingston contention, the Licensing Board discussed the section
- 2. 714 (a) (1) factors but,-given its conclusion that not all of the reopening criteria were met, did not undertake to balance those factors. See March 23,.1987 Memorandum and Order. The Merrimac contention was rejected, however, on the basis of both the reopening criteria and'a balancing of the section 2.714 (a) (1) factors. See March 25, 1987 Memorandum and Order.
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1 appellate issues had reached fruition, we concluded that the appropriate course was to render our decision on those ,
issues without additional delay and to reserve jurisdiction over the siren questions pending our further order.8 .
As will be seen, our endeavor to obtain a settlement of the siren questions was not entirely successful. We thus have had to confront the challenges to the rejection of the East Kingston and Merrimac contentions. For the reasons set forth below, we conclude that they are without merit. More specifically, irrespective of whether consideration is given to information presented to us that was not before the Licensing Board, we are satisfied that the contentions do not raise safety questions of sufficient gravity to justify the reopening of a closed record to accommodate them.
A. East Kingston. As observed in ALAB-875, the controversy involving the adequacy of the four East Kingston sirens had its genesis in a test of those sirens performed last January. According to an affidavit supplied by the Seacoast Anti-Pollution League (SAPL) in support of its motion to reopen the record to permit the admission of a contention directed to the applicants' siren system, the 8
See ALAB-875, 26 NRC at (slip opinion at 47-48).
9 Id. at (slip opinion at 45-46).
5 test brought to light a number of deficiencies.10 Specifically, one or more of the sirens did not function at all during some phases of the test. And the functioning sirens assertedly did not uniformly fulfill their intended objective.
In addition to pointing to this development as demonstrating the shortcomings of the siren system, SAPL called attention to a January 1987 decision of the Rockingham County, New Hampshire Superior Court in a suit instituted by the Town of Rye, New Hampshire, against the lead applicant Public Service Company of New Hampshire.
In that decision, the court concluded that New Hampshire statutory law precluded the grant of licenses to the applicants to erect poles on state or town-maintained highways for purposes related solely to the siren system.
On the strength of that conclusion, the court declared " null and void" all such licenses issued by either Rye or a New Hampshire state agency in connection with highways located 10 See Seacoast Anti-Pollution League's Contention and Motion to Admit Late-Filed Contention, Reopen the Record on on-Site Emergency Planning, and Condition the Issuance of a License Up to 5% of Rated Power on Applicants' Compliance with 10 CFR S 50.47 (b) (5) (February 6, 1987) [ hereinafter SAPL's Contention and Motion], Affidavit of Frederick H.
Anderson, Jr.
11 See Town of Rye v. Public Service Co. of N.H., No.
86-E-34 (N. H . Super. Ct., Rockingham County, January 22, 1987), attached to SAPL's Contention and Motion.
6-in that municipality and nearby Hampton Falls (which had intervened in the litigation).12: This declaration in turn led to an order directing the applicants to remove.the poles erected under the aegis of those licenses.13 In its March 23 memorandum and order,.the Licensing Board determined that neither the siren test nor the judicial decision gave rise to a significant safety issue.14 With respect to the test, the Board relied on an NRC staff affidavit to the effect that it was not a reliable indicator of the capabilities of the sirens.15 This was because (1) the proper procedures were not followed by the East Kingston officials in conducting the test, and (2) a buildup of ice and snow had adversely affected the operation of the sirens.16 On the latter score, the affidavit noted that measures would be taken to avoid a repetition of such a l buildup: e.g., an anti-icing agent would be applied to the i.
1 12 Id. at 4.
13 Id. at 6-7.
14 See Memorandum and Order at 7-9.
15 See NRC Staff Response to SAPL's Late-Filed Contention and Motion to Reopen the Record (February 26, 1987) , Affidavit of William J. Lazarus.
6 Id., Affidavit at 2-4.
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sirens, which also would be reoriented to point in a southerly direction.17 Turning to the judicial decision, the Board observed ,
l that it had been appealed to the New Hampshire Supreme Court j and, accordingly, had not taken effect.18 Consequently, the Board reasoned, the decision lacked current safety significance. The Board added that, were'the sirens to be
, -subsequently removed on the strength of an affirmance of-the l
decision, the Commission's regulations would.bar reactor operation in the absence of' alternative measures to provide the requisite-reasonable assurance that the public health and safety would be protected in the event of an accident.19 In coming to grips with SAPL's challenge to the denial of its motion to reopen the record, we encounter no difficulty in agreeing with the Licensing Board that the concern engendered by the Superior Court's ruling is premature. SAPL does not dispute that the siren poles have not been removed and will continue to remain in place at least until the outcome of the pending appeal to the state l
Supreme Court. That appeal was argued on October 7 and will Id., Affidavit at 4-5.
18 See March 23, 1987 Memorandum and Order at 9.
19 Ibid.
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j be decided at some currently uncertain date.20 We need not speculate on what the state Supreme Court is likely to ]
I determine on the pivotal issue of New Hampshire law -- a l course fraught with considerable peril in any event. If the court overturns the result below, that will likely be the I I
end of the matter. On the other hand, if the directive to remove'the poles in question is affirmed, the applicants obviously will have to substitute for the sirens some other i l
mechanism that will satisfy the regulatory requirement i
regarding "early notification and clear instruction to the l populace within the" EPZ. If SAPL believes that the l 4
substitute proposed by the applicants is insufficient to meet that requirement, it will have means at its disposal'to put that belief before the Commission.22 On the matter of SAPL's concerns stemming from the January test of the East Kingston sirens, none of the interested parties disagreed with our suggestion at oral argument that the sensible course was to undertake another 3
test during the coming winter. Accordingly, as noted in 20 See Applicant's Response to' Appeal Board Order of October 13, 1987: Supplemental Memorandum (October 30, 1987).
21 See supra p. 1.
22 See, e.g., 10 CFR 2.206.
23 See, e.g., App. Tr. 63-64, 116-18.
9 ALAB-875, in a July 30, 1987 memorandum and order (unpublished) we directed those parties to endeavor to come to an agreement among themselves with regard to the " test procedures that should be utilized and the appropriate climatic conditions for the conduct of the test."24 That .
. l endeavor proved only. partially fruitful. .In the staff's I report on the outcome of the discussions in which it,LSAPL, and the applicants took part, the staff advised us that agreement had been reached on all but three subjects.25 In SAPL's view, contrary.to that of the applicants and staff, the test should (1) include'all sirens in the New Hampshire EPZ, rather than just those in East Kingston; -(2) embrace .
l-the public address (and not merely the tone alert) function of those sirens located in the beach areas;.and (3) be scheduled not more than.five days in advance.26 It is manifest from the. text of our July 30 memorandum and order that we had in mind a new test of the East l Kingston sirens alone. The reason is readily. apparent.
Once again, the sole basis assigned for the claim of siren i
i 24 26 NRC at .(slip opinion at 46).
25 See letter from Edwin J. Reis to the members of this Board (September 11, 1987).
26 Id. at 2. See also Seacoast Anti-Pollution League?s-Memorandum Regarding Test of East Kingston Sirens (October-1, 1987).
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system inadequacy advanced in the SAPL contention was the outcome of the test of those sirens. And at no time during )
t the course of the consideration of the contention either by the Licensing Board or by us has SAPL provided any information that might suggest an infirmity in the sirens i l
located elsewhere in the EPZ. That being so, SAPL is j i
scarcely in a position to insist that, as part of any settlement of the controversy surrounding the rejection of ]
l the SAPL contention, the test be extended to sirens beyond !
East Kingston. The same is true with respect to SAPL's I argument that the test should encompass the public address function of the sirens in beach areas. East Kingston does not include beach areas and, therefore, its sirens will not I
be relied upon during a Seabrook emergency for public address functions.27 l Thus, the first two points of disagreement must be resolved in favor of the applicants and staff. This does not mean, of course, that the sirens in other portions of 1
the EPZ (both in New Hampshire and Massachusetts) will go untested. As the staff has informed us without l
l See NRC Staff's Response to Appeal Board Order of 1
September 17, 1987. (September 25, 1987) at 2-3; Applicants' Memorandum Regarding Test of East Kingston Sirens (September 30, 1987) at 2.
11 contradiction, the Federal Emergency Management Agency (FEMA) has assumed by regulation the responsibility of determining the adequacy of the applicants' siren system as part of its review of the overall offsite emergency i
preparedness program for the facility.28 It is inconceivable that FEMA'would undertake to make a determination in that regard without an appropriate test of the sirens that are to serve as part of the emergency response effort.
That leaves for consideration SAPL's objection to the applicants' proposal that a specific date for the East Kingston siren test be set well in advance -- indeed, in September the applicants and the staff settled upon January 30, 1988.29 We think that there is substance to the objection. There is obviously no way of now' forecasting with any degree. of confidence the weather conditions that are likely to prevail several months hence. For all that was known when January 30 was selected, or is now known, on l 28 See NRC Staff Supplemental Response to Appeal Board Order of September 17, 1987 Regarding East Kingston Sirens (October 6, 1987) at 3 n.3; 44 CFR 350.3 (e) . See also Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3) , ALAB-732, 17 NRC 1076, 1104-05 & n.45 l
(1983).
' See NRC Staff's Response to Appeal Board Order of September 17, 1987 at 3-4; Applicants' Memorandum Regarding Test of East Kingston Sirens at 1-2.
12 that date New Hampshire might be enjoying a spell of unseasonably temperate weather. If so, the test would scarcely serve its intended purpose (among others) of ascertaining how the sirens function in the more severe climatic conditions that customarily attend upon Northern New England winters.
In this connection, we are unpersuaded that, as the applicants maintain, it would not be possible to mobilize in the space of several days the personnel involved in the siren test and to provide adequate prior notice to the
. public. After all, there are only four sirens to be tested in a relatively small community, with the consequence that a very limited number of observers and other participants will be required.31 And while it may be true that, as both the applicants and staff stress, one cannot predict weather conditions with absolute accuracy even four or five days in advance, it cannot be gainsaid that a prediction in that time frame is likely to be much closer to the mark than a conjecture in September regarding what the weather will be like on a particular day in late January.
O See Applicants' Memorandum Regarding Test of East Kingston Sirens at 2-3.
31 See letter of Edwin J. Reis, Attachment (Siren Activation Test Procedure - East Kingston) at 4, 6.
13 Notwithstanding these considerations, we cannot conclude that the action of the applicants and staff in already determining the date for the test gives rise to a significant safety issue requiring the reopening of the record to entertain the SAPL contention. This being so, we lack the legal predicate for ordering the applicants and the staff to reconsider what appears to us to have been a premature selection of a test date. The most that we can do is to urge such reconsideration in the interest of increasing the likelihood (albeit not providing any l
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indicator of the ability of the sirens to operate in inclement weather. In this regard, we think there is much '
to be said for the counterproposal that SAPL placed on the table during the settlement discussions mandated by our July 30 order. Underlying that proposal are the dual considerations that the test should take place in January or i
early February and, in accordance with East Kingston's desire, on a Saturday. SAPL would have it that, if on a particular Monday during that period the five-day weather l l
forecast called for the appropriate inclement conditions at j the end of the week, the test be then scheduled for the following Saturday. Should this procedure not lead to the j
l scheduling of a test for some Saturday prior to February 13, '
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14 the test would be set for that date irrespective of predicted weather conditions.32 B. Merrimac. The Attorney General's concerns respecting the adequacy of the sirens serving the Town of i Merrimac rest on a quite different footing. Specifically, through his late contention, the Attorney General seeks to litigate whether the sound pressure produced by those sirens will satisfy the acceptability standard established by the NRC and FEMA jointly. For lightly populated areas such as 32 See letter of Edwin J. Reis at 2.
Having advised the staf f that his client would abide by any agreement entered into by SAPL on the subject, counsel for the Attorney General did not participate in the settlement discussions pertaining to the test of the East Kingston sirens. See ALAB-875, 26 NRC at n.100.
Nonetheless, through new counsel, the Attorney General later interposed objections to the proposed test procedures that had not been advanced by SAPL. Ibid <. Even though not 3 required to do so in the circumstances, we have examined those objections (as well as the Attorney General's comments on SAPL's concerns). Only one of the Attorney General's points appearn to have some substance: there'may well be justification for assigning additional observers to certain areas where the siren coverage might be insufficient. But that consideration similarly does not warrant a reopening of the record to accept the SAPL contention. Moreover, we see no reason why the Attorney General himself could not arrange for the additional observers thought to be necessary.
See NUREG-0654/ FEMA-REP-1 (Revision 1), " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power !
Plants" (November 1980) (hereinafter NUREG-0654], Appendix 3 1 at 3-10 to 3-11; FEMA-REP-10, " Guide for the Evaluation of l Alert and Notification Systems for Nuclear Power Plants" l (November 1985) [ hereinafter FEMA-REP-10) at E-8.
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15 Merrimac, that standard can be met in one of two ways. The utility may show that, throughout the area they are called 8
upon to cover, the sirens will provide (either individually j or collectively) a sound pressure level of at least 60 4
decibels C (dBC). Alternatively, the utility may demonstrate that, even though less than 60 dBC, the expected sound pressure level will exceed the average measured daytime ambient (background) sound pressure levels by, preferably, at least 10 decibels (dB).
It is not disputed that, in certain portions of the territory covered by them, the Merrimac sirens fall short of meeting the 60 dBC coverage criterion. Therefore, to 34 The pressure level of sound is measured relative to a small reference pressure and is reported in units called decibels (4dB) . These measurements can be weighted by i different filter circuits in the measuring equipment. One 3 such measurement is weighted by so-called " filter C" and is referred to as decibels C, or dBC. See _ Mechanical Engineer's Reference Book, at 15-19 to 15-21 (. A . P61rish, lith ed. 1973).
As will be seen, the record in this case reflects that the pressure level of ambient sound was expressed in terms of "dB" while the sound pressure level of sirens was expressed in terms of "dBC." No party has suggested that the difference in usage is significant here.
35 The NRC/ FEMA guidance refers to the 10 dB differential as a " target" in the design of the siren system. See NUREG-0654, Appendix 3 at 3-8.
36 See, e.g., Applicants' Response to " Contention of Attorney General Francis X. Bellotti and Motion to Admit l Late-Filed Contention . . . " and Alternative Motion for 4 (Footnote Continued) l l
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i comply with the NRC/ FEMA standard, in those areas the sirens must meet the alternative criterion.
I In determining that the Attorney General had not j established that a significant safety issue existed regarding the adequacy of the Merrimac sirens, the Licensing Board relied on the result.s of a March 10, 1987 set of measurements of the ambient sound pressure levels, which the.
applicants had commissioned.37 Taken in conjunction with 1
the assumption (not challenged by the Attorney General) that I the siren coverage was at least 50 dBC, those results reflected the existence of the 10 dB differential.
I In performing these measurements, the applicants' consultant had utilized a one-third octave band; i.e., it-had collected sound coming within that frequency range.39 For his part, the Attorney General was of the opinion that a full octave br.nd should have been employed by the applicants' consultant. Acting on that opinion, the l
(Footnote Continued)
Summary Disposition (January 22, 1987), Affidavit of James A. MacDonald, Attachment (letter of Robert S. Berens to James A. MacDonald (July 7, 1986)).
See March 25, 1987 Memorandum and Order at 5-6, 14.
38 See Applicants' Answer to Motion of Attorney General James M. Shannon to Reconsider Late-Filed Contention With Revised Basis and to Reopen the Record (March 13, 1987),
Affidavit of Anthony M. Callendrello.
39 Ibid.
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i Attorney General had provided the Board with the results of l I
measurements taken by his consultant that took account of ]
l the sound falling within that broader range.40 Those results suggested that, assuming siren coverage of exactly !
50 dBC, in some areas the differential between ambient and siren sound pressure levels was less than 10 dB.41 The Licensing Board declined, however, to attach any weight to this consideration.42 As it understood the' FEMA guidance on i
the methodology for taking measurements of ambient sound l
l pressure levels, the use of a one-third octave band is l
acceptable.43 t on his appeal to us from the disposition below of the l Merrimac siren issue, the Attorney General insisted that, i l
l given the fact that demonstrated compliance with the I
NRC/ FEMA acceptability standard appeared to hinge upon what I frequency range was selected for measurement purposes, the record should have been reopened to explore further that matter. At oral argument, however, he expressly conceded 40 See Motion of Attorney General James M. Shannon to Reconsider Late-Filed Contention With Revised Basis and to Reopen the Record (March 3, 1987), Affidavit of Brion Koning.
41 Id., Affidavit at 3.
42 See March 25, 1987 Memorandum and Order at 15-16.
43 Id. at 14-15.
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~ 18 that the use'of either a one-third or full octave band is acceptable.44 Given that concession, we might well have.
brought our inquiry to an end. For it amounts to an acknowledgement that.the use of the one-third octave band was sufficiently conservative for the purpose'of ascertaining whether there was the necessary dif ferential between ambient and siren sound pressure levels. And there
. l is an at least tacit further acknowledgement by the Attorney General that, as the Licensing Board found, the existence.of the differential was established-by the results obtained J from the measurement of ambient sound pressure levels in the one-third octave band.
But we were also' informed at oral argument that the applicants had scheduled another set of measurements for l later in the summer.45 In that circumstance, it.seemed prudent to await the outcome of those measurements before-closing the door on this subject. Among.other things, we 1
thought it of possible significance that they would be taken in the summer, when presumably the ambient sound pressure level,s are at.their peak.46 Accordingly, we instructed the 44 App. Tr. 76.
45 App. Tr. 79.
46 Although apparently not a requirement, FEMA recommends that ambient sound pressure-levels be measured (Footnote Continued)
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applicants to furnish the results of the measurements when available, together with a description of the methodology employed.47 The measurements were taken on two days in late August in a total of nine Merrimac locations. At each location, the applicants' current consultant, Wyle Laboratories, l
collected the ambient sound for a fifteen-minute-period in l early to mid-afternoon over a one-third octave band. I i
According to the applicants' report, with a single exception the measured sound pressure levels were below 40 dB and, thus, at least 10 dB below the assumed siren sound coverage of 50 dBC. The exception was a location at which the 1
measured sound pressure level was 41 dB. An analysis by Wyle indicated, however, that the actual siren sound l
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coverage at that location would be in the, neighborhood of 60 dBC.4 )
In short, the applicants' report maintained that the August measurements established that the 10 dB differential !
(Footnote Continued) during the summer. See FEMA-REP-10 at E-8; NRC Staff Response to Massachusetts Attorney General's Motion to l Reopen Record and Consider Late-Filed Contention With Revised Basis (March 20, 1987) at 8 n.2.
47 See ALAB-875, 26 NRC at (slip opinion at 45).
48 See letter from Thomas G. Dignan, Jr. to the members of this Board (September 17, 1987), Attachments (letter from John R. Stearns, Wyle Laboratories, to the lead applicant (September 4, 1987) and Report).
- i 20 was met throughout the coverage area of the Merrimac sirens.49 Responding to the' report, the Attorney General 1
1 took issue with two aspects of the methodology employed _by the applicants' consultant.50 In addition, he supplied the resul'ts of measurements taken in September a't his instigation.51 q
As the Attorney General sees it, applicants'
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measurements should have been taken at each location at frequent intervals over a period of days.. Further, he expressed disagreement with the reference standard (L 90 exceedance level) employed by Wyle in determining what level of ambient sound should be deemed significant for reporting 52 1 purposes.
Our examination of the NRC and FEMA sound measurement guidance brought to our attention by the parties does not 49 Id.,
Report at 3.
50 j See letter from Allan R. Fierce to the members of this Board (October 2, 1987).
51 See id., Affidavit of Gregory C. Tocci. See also letter from Allan R. Fierce to the members of this Board I (October 23, 1987), Enclosure (" Ambient Sound Level Study (of] Merrimac, Massachusetts," (September 1987) [ hereinafter 1 Cavanaugh Tocci Final Report]).
52 See October 2 letter of Allan R. Fierce at 2-3.
Exceedance levels are expressed in terms of the letter "L" and a subscript number reflecting the percentage of the l measurement interval during which the sound' pressure was above the reported level. See A. Peterson, Handbook of ;
Noise Measurement, at 57 (9th ed. 1980).
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21 address either of these concerns.53 In essence, both agencies leave.it up to the ' taker of the measurements to determine, at least in the.first instance, the appropriate time period and reference standard. As earlier noted, FEMA ultimately will be called upon to decide the adequacy of the Merrimac. sirens.54 :D1 fulfilling this responsibility, it i presumably will consider, inter alia, the methodology i
employed by the applicants in measuring ambient sound pressure levels. .For present purposes, we need consider whether it clearly appears that the methodology-was so crucially flawed that no good reason exists to await the outcome of the FEMA review. No such demonstration has'been' s made. Indeed, the record establishes that, in taking its measurements last February, the Attorney Gener61's own 1
consultant utilized.both a single thirty-minute period at each location and the same L ref rence standard selected ]
90 by the applicants' consultant.55 Even though the Attorney i
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53 See generally NUREG-0654; FEMA-REP-10; and FEMA-43, -
" Standard Guide for the Evaluation of Alert and Notification i Systems for Nuclear Power Plants" (September 1983). j 54 See supra pp. 10-11.
55 See Koning Affidavit at 2. We do not understand the Attorney General to maintain'that the difference between a l 15 and a 30-minute period is of significance. Rather, to l repeat, his point is that measurements should be taken throughout the day. The September measurements taken by his consultant generally adopted that approach. See Tocci Affidavit at 5-6.
22 General may prefer essentially continuous measurement taking and the different reference standard used by his consultant l d
in its September measurements (the L exceedance level), it 50 ]
does act follow that the-Wyle_ methodology is unacceptable or
%nreliable.56 f i The single remaining question then is whether nhe Attorney General's September measurements themselves cast j l
doubt on the applicants' conclusion that the Merrimac sirens are adequate. Those measurements were taken by his consultant, Cavanaugh Tocci Associates, at four locations j chosen because of the possibility of inadequate siren l 57 coverage. As reflected by the data for the L 50 measurements included in the consultant's final report, in j 58 three of those locations the average daytime ambient sound
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i 56 The applicants' March 10 measurements had similarly been taken over a' single 15-minute period with the same reference standard used for the August measurements. See Callendrello Affidavit, Attachment (letter of Robert S.
Berens to'the lead applicant (March 11, 1987) at 2). Yet the Attorney General's sole voiced objection to the utilized methodology related to the choice of a one-third, rather than a full, octave _ band. See supra pp. 16-18. At the time i of the August measurements, the applicants had this additional reason to assume that the Attorney General regarded the 15-minute measurement period and the selected reference standard to be acceptable.
57 See October 2 letter of Allan R. Fierce at 3. See also Cavanaugh Tocci Final Report at 1, 11-12.
River Road, South Pleasant Street and High Street.
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pressure level exceeded 40 dB; in the remaining location,59 ;
the data established,.the average level was below 40 dB.60 on the basis of the preliminary report presaging these i j
results,61 we called upon the applicants to provide us with !
any available information regarding the siren sound pressure levels at all four locations.62 In response, the applicants i
supplied an analysis by their consultant, Wyle, that assigned a siren sound pressure level to'each-location.63 A simple mathematical computation utilizing both the Wyle analysis and the data supplied by the Attorney General 64 discloses that at three of the locations a differential of at least 10 dB manifestly exists between the siren sound pressure level and the average daytime ambient sound pressure level (irrespective of which reference standard 'is invoked). But at the fourth location -- South Pleasant l
Street -- compliance with that acceptability criterion hinges upon which reference standard is utilized in 59 Bear Hill Road.
60 See generally Cavanaugh Tocci Final Report.
61 See Tocci Affidavit at 11.
62 See Order (October 13, 1987).
1 63 See Applicants' Response.to Appeal Board Order of October 13, 1987: Supplemental Memorandum, Affidavit of Louis C. Sutherland.
64 River Road, High Street and Bear Hill Road. j
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determining what ambient sound should be reported. Using l i
the L 90 standard invoked by the applicants' and the Attorney ]
General's consultants in their measurements early in the I 1
year, it turns out that the 10 dB differential is' satisfied. ')
on the other hand, the L standard now adopted by the 50 Attorney General's consultant (but not by tbat of the ;
applicants) produces a differential at South Pleasant Street of approximately 7 dB.65 l
( There is nothing before us to support a FEMA preference- I for one standard over the other. Moreover, inasmuch as at.
one time or another, the consultants for both the Attorney '
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General and the applicants used the L standard, it is 90 beyond cavil that acoustic professionals on occasion resort to that standard. In this circumstance, we'cannot conclude that the Attorney General's September measurements.at the South Pleasant Street location give rise to an issue of such safety significance that a reopening of the record on the I adequacy of the Merrimac sirens is mandated.66 l
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65 Cavanaugh Tocci As'sociates presented the.results of its' September measurements in terms of both the L 9g and L 50 standards. ;
66 Our disinclination on this record to choose between '
the L and L reference standards does not, of course, 5
prec18beFEMAgrommakingsuchachoiceinitsown evaluation of the acceptability of the Merrimac sirens.
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i 25 i In responding to the Wyle analysis, the Attorney ;
General did not confine himself, however, to calling attention to the South Pleasant Street situation.6 In addition, he asked leave to conduct discovery to determine q
whether infirmities existed in the Wyle analysis that led to !
i the values assigned to the siren sound pressure levels at l the four locations.68 Controlling precedent stands in the l
way of granting that request. In advising an intervenor that it had " misconstrued the standards for reopening" a closed record in the Three Mile Island Restart proceeding, l i
the Commission had this to say:
The burden is on the movant to establish prior to j reopening that the standards for reopening are ;
I met. The movant is not entitled to engage in j discovery in order to support a motion to reopen. !
Rather, the issue in each case is whether the 1 available information meets the standards for reopening, i.e., timely raises a significant
]
safety issue which might have affected the l Licensing Board's decision, such that the rggord !
should be reopened and discovery initiated l 1
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67 See Attorney General James M. Shannon's Reply to Applicants' October 30, 1987 Supplemental Memorandum in Response to Appeal Board Order of October 13, 1987 (November 13, 1987).
68
, See Motion of Attorney General James M. Shannon to l Conduct Discovery Regarding How Siren Sound Levels Were Calculated for Merrimac by Louis C. Sutherland (November 13, 1987).
69 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-85-7, 21 NRC 1104, 1106 (1985).
b 26 The following year, in the Perry proceeding, the Commission reiterated the "available information" requirement in the course of overturning our determination to conduct' a brief.
evidentiary hearing to probe further the safety significance of an issue on which the reopening of the record was being sought.70 The Licensing Board's March 23 and 25, 1987, denials of the motions to reopen the record to allow the admission'of late contentions on the adequacy of the East Kingston and Merrimac emergency notification sirens are affirmed. This Board still has before it, however, a recently filed motion of the Attorney General seeking a reopening of the record to permit a late contention addressed to the alleged removal of sirens in the City of Newburyport, Massachusetts. Action-on that motion is deferred to await the receipt of the responses to it.
70 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-7, 23 NRC 233, 235-36 (1986) (citing, in addition to Three Mile Island, Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1 (1986)).
I See Contention of Attorney General James M. Shannon and Motion to Admit Late-Filed Contention and Reopen the Record (November 13, 1987).
J 27 It is so ORDERED. !
FOR THE APPEAL BOARD b l') ( 3 I O N b d 61 b ~ g g&
E..eanor E. HaginsQ l Secretary to the '
Appeal Board l l
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